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Alextronic Discovery
An Electronic Discovery Blog covering News, Articles
and Thoughts for the Legal and Corporate Community Author: Alexander H. Lubarsky, LL.M., Esq. - alubarsky@enterusa.com - Tel. (415) 533-4166 OR 800-375-4222 THIS BLAWG IS NOT AFFILIATED WITH THE WEB SITES WWW.DISCOVERYRESOURCES.ORG OR WWW.DISCOVERYRESOURCES.COM


Thursday, September 01, 2005

Hot Native Passions Ignite!  

Hot Native Passions Ignite!

No, Alextronic has not gone Harlequin on you. If you were expecting steam to rise from them little spaces between your keyboard as you read this belated Alextronic entry, you will be woefully disappointed.

But passions (of a less prurient nature) are erupting around us. I speak of the passions that are invoked when the hot issue of electronic discovery review and production best practices rears its feisty little head.

I find that few are actually passionate about having to do a document privilege/relevance review and production, but without doubt the nature and format of that very review almost inevitably invokes deeply rooted primal desires and lusts of such intensities not seen since biblical times before metadata and Zubulake in Eden's garden with the pesty serpent and what's his name and who's her face.

Attorneys, paralegals, litigation support professionals and vendors nearly "go to blows" when it comes to electronic review formats. I've recently counted it among my favorite emerging spectator sports as it both entertains and educates. Not unlike watching Texas Hold'em poker marathons.

I recently visited a national litigation support director for a large New York based firm. I found him red faced and fuming at the fact that the partner in charge of a large SEC audit response wanted to have all of the data which had been electronically harvested at great expense to the client converted to .tiffs before reviewing. The lit support director, I'll call him Frank, was grinding his teeth and pacing in circles around his small office - carefully avoiding the small mounds of ALC and Ikon labeled banker boxes nearly missing collisions with his cabinets full of DVD's and DLT tapes.

"This is going to add another thirty percent to the cost of this project... the client will be steamed" he muttered, "we will bill out for all of those .tiffs when only a smidgen will be actually produced or redacted. This is bullshit!"

I tried to change the subject by asking how his fly fishing trip to Alaska last month turned out but to no avail. Frank began to wring his sweaty hands and scratch his head intermittently as he muttered something about the extra time it would require to convert the native data to images. "Hell, we have the tools to do a native review and I hate waiting for tiffs to load." We already have the .idx export file so why send this back to a vendor so they can jack up the bill... tose damn... and... "Frank stopped himself in mid sentence realizing that he was talking to an ambassador from the evil planet "V" and back tracked with noteworthy grace given his emotional state. "Not that I believe you'd inflate a bill, Alex... You know, its just that this new requirement will make everyone vulnerable and I just don't see the logic."

I attempted to sooth Frank a bit suggesting that if the partner were to actually see a native review tool in action, he may start to sing a different tune. Frank assured me that the partner in question was someone who was not known to budge. She had blown up at him recently and he was frankly scared to death of her.

I offered to take Frank out for beers on Friday and then decided to pop in to meet with a managing partner who I have become friendly with at the firm next door.

Michael was surprisingly around and not vacationing in Switzerland or lunching with a client when I asked for him. He didn't have a lot of time but he invited me into his corner office and told me about a sixty three million dollar IP infringement verdict he had recently won before the District Court judge reduced it to a fraction which still represents a king's ransom in the humble world of Alextronic.

Michael is somewhat of a lit support guru. We met at a Glasser show where I was speaking on common electronic discovery faux pas and he hung around to ask me why I didn't include failing to check vendor references as one of them. He told me a story about an EDD shop that came in with the low bid only to botch a job so badly, the firm had to request an emergency continuance and a ruling on a discovery motion to be held in abeyance while the EDD shop was replaced (and ultimately sued) by the law firm.

Michael had been extolling the virtues of native review but had locked horns with a client who wanted native production as well. The client wanted to keep costs down and any .tiffs or .pdfs created for production after a native review would surely impinge on that endeavor. Michael had spent over an hour on the phone talking corporate counsel out of insisting on a native production. I guess the easily exposed metadata and inability to overlay production numbers and other stamps finally did the trick. Michael performed a quick little exhale as he simulated the motion of dabbing beads of sweat from his forehead as he finished his story. "What a relief it was to finally get these guys to see the pitfalls of a native production" he surmised.

As I left Michael's office, I checked my voice message where my friend Scott Sachs had left a detailed description of how he had persuaded a Superior Court judge to order an on-line native review and how opposing counsel was livid at the notion... I thought to myself, move over Jerry Springer - just spend some time with litigaton professionals debating discovery review strategies... that's worth a million former transvestite former klansmen who will reveal their secret crush after the station identification.

posted by Alexander | 3:35 PM

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